January 18, 2011

N.Y. Judge Wants Remedy in CIA Tape Destruction Case

John Durham, the career prosecutor in Connecticut who oversaw the Justice Department investigation of the CIA's destruction of interrogation tapes, may get a chance to book a trip to a New York courtroom soon.

Durham's review of the CIA’s destruction of 92 tapes did not end a criminal referral. Now, a New York federal district judge may want to hear from Durham as the judge tries to resolve a public records suit over the tapes.

The destruction of 92 tapes showing the government’s abusive treatment of high-level al-Queda detainees violated Judge Alvin Hellerstein’s order in 2004 to preserve the evidence in a Freedom of Information Act suit the American Civil Liberties Union brought against the government.

At a hearing Friday in the U.S. District Court for the Southern District of New York, Hellerstein expressed his intent to find a remedy to wrap up the litigation. The judge doesn’t seem interested in letting the case end without some acceptance of government responsibility. The New York Law Journal, a sister publication, was on hand for the action.

In court, Hellerstein told the lawyers in the case that “this kind of destruction never should have occurred. It tells the court the CIA does not trust the judges to have proper regard for the security interests of the United States."

Hellerstein wants the ACLU lawyers and prosecutors involved in the case to submit briefs about the best way to resolve the case. The judge said the value in a civil contempt finding is minimal since he cannot bring the government in compliance with a court order to preserve tapes that have already been destroyed.

An assistant U.S. attorney, Tara LaMorte, volunteered to have Durham, who was appointed in 2008 by then-Attorney General Michael Mukasey, speak to Hellerstein. Durham concluded last year that his probe did not turn up criminal wrongdoing.

Hellerstein, according to The New York Law Journal, said he’d be delighted to hear from Durham.